Author: TSA Press

Ed. note: Disinformation attacks and influence campaigns have gone mainstream. Once a conduit for influencing political opinions, this new threat model now poses immeasurable risk to the private sector. This two-part series will discuss the growing trend of disinformation campaigns disrupting the commercial sector, and the accompanying need for lawyers to lean into cyber to provide effective counsel when analyzing risk or addressing the fallout. Part one of this article discussed this new wave of cyber-attacks against companies. Here in part two, we will delve into what lawyers can do to help companies mitigate disinformation attacks when they occur.

The number of countries in the cross-hairs of political disinformation campaigns more than doubled to 70 in the last two years, according to a recent report from researchers at Oxford University.  Given the efficacy of such attacks, it’s not surprising that disinformation campaigns are also becoming a business problem.  Companies as varied as Olive Garden, Koch’s Turkeys, and Columbine Chemicals have been recent victims of massive social media hoaxes spreading false information connected to their product or brand.

Beyond maintaining tight controls over online accounts and training staff in basic cybersecurity practices, such as strong password management, there isn’t much that companies can do to prevent disinformation attacks which can ramp up quickly and threaten corporate value. Criminal groups are even beginning to offer disinformation campaign services to help bad actors get started, according to ZDNet.

Free open source tools like Social Bearing and Hoaxy, along with sophisticated brand-monitoring tools like Sysomos, can monitor social media accounts to provide advance warning of disinformation attacks in process.  Yet mainstream social media isn’t where attack coordination and planning take place, according to Cindy Otis, author of True or False: A CIA Analyst’s Guide to Identifying and Fighting Fake News and Director of Analysis at Nisos (full disclosure: we are colleagues).  It pays to have cybersecurity experts ready to discover disinformation campaigns before they show up on mainstream media and determine the extent and source of these campaigns when they appear, says Otis.

Part of disarming the enemy means first understanding who they are.  Attributing the attacks is a rigorous process which can involve sifting through tens of thousands of tweets and messaging to understand the identities and motivations of the players.   But attribution, when done properly, can pay generous dividends.  Often, the ability to directly attribute disinformation activities to a threat actor are enough to quell public chatter, but attribution is often beyond the scope for internal IT/security teams.  A company called New Knowledge purports to identify and mitigate disinformation campaigns for companies.  And while these services can get expensive, the spend may still be worthwhile given the reputational or actual damages they can prevent or at least limit.

In certain cases, when bringing on outside cyber experts to investigate these incidents, companies are best off directly engaging with outside counsel.  This type of approach is effective in preserving legal privileges and can yield precious evidence when criminal justice or regulatory measures are implicated, that can be provided directly to law enforcement.  Before deciding whether to pursue an investigation, the risks of any negative information about the targeted company that may come out of it, such as gaps in compliance and security, should be carefully considered along with the drain on resources, likelihood of success, and the relevance of potential findings to possible outcomes, including legal implications.

It’s important to note that governments across the world are beginning to creating programs and laws designed to prevent and thwart misinformation campaigns.  In January 2019, CNN reported that a company that profited millions of dollars by selling fake social media posts and comments settled a case with the New York state attorney.  The settlement was based on the finding that selling fake social media activity was deemed illegal, as matter of first impression.

Deepfakes are harder to detect. Software developers and companies like Facebook are experimenting with applying AI to speed up and improve detection..  Other technologies that could disrupt deepfakes include the use of watermarks or tracking technology to monitor original content for alteration.  The Pentagon’s research arm, DARPA, is also spearheading industry efforts to better understand disinformation attacks and discover solutions for combating them. However, for now, Otis says, “The reality is that human solutions and human eyes on target are still the best solution even though it’s incredibly difficult to correct false information once it is out there, or at least to get the truth in front of the same people who bought into the false information.”

Nailing the Response

While solutions are slim for preventing disinformation attacks, a rapid, effective response plan is critical to minimize the fallout.

1. The issue of whether to respond is as critical as the question of how to respond

The first thing any company should assess is whether the level and potential overall impact of disinformation in the public domain merits a response or whether a response might in fact further inflame the issue.  There’s a marked difference between a person or a handful of people spreading false information with limited reach and a more sophisticated and calculated attack, Otis says.  In the former scenario, it’s important to keep in mind that legally, anyone can render an unfavorable opinion about a company, invoking their right to free speech.  In the latter scenario, a far more insidious situation, a network of individuals or bots using automated fake accounts can quickly spread fabricated or misleading content.  Fake websites are programmed to propagate the same nefarious messaging while coming off as credible and neutral.

2. Crisis communications are central to a strong defense

Company executives should develop a crisis communications plan as a playbook for lodging a rapid response to the public and the media.  Plans should incorporate a clear assessment about the origins and breadth of the attack before the company issues any public statements.  A proper assessment includes understanding the methodology behind the attack, the perpetrators themselves (subject to the variable degree to which the actors can be positively attributed) and their intentions. “In short, companies need solid attribution,” Otis says. Otherwise, sharing information about a disinformation attack against your company may appear as unfairly targeting critics or even worse, competitors.   Finally, a comprehensive crisis communications plan should encompass a logistical plan of attack including dissemination channels — whether social media platforms, press releases, or interviews with news outlets.  A PR firm or a company’s internal PR/marketing team, in conjunction with legal, can ensure that the message to the public is on track to dispel the disinformation and set the record straight.

In this era of fake news, disinformation and influence campaigns, things are not what they seem and public mistrust of companies, institutions, and leaders has never been higher.   But disinformation paralysis and unbridled skepticism can only exacerbate the problem.   With the right preparation, a healthy dose of vigilance, and a strong team of stakeholders, we can hold precious ground.

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Jennifer DeTrani is General Counsel and EVP of Nisos, a technology-enabled cybersecurity firm.  She co-founded a secure messaging platform, Wickr, where she served as General Counsel for five years.  You can connect with Jennifer on Wickr (dtrain), LinkedIn or by email at dtrain@nisos.com.

Embattled Thomas Jefferson School of Law is working to assure its current students that they will still be able to take the bar exam outside of California even if the school loses its ABA accreditation due to its financial and academic issues.

This message was most recently conveyed in an email to students from the San Diego school’s dean, Linda Keller. She wrote that what prompted her message was incorrect information about Thomas Jefferson in a different news outlet.

“If a school loses accreditation, the next step is typically what’s called a teach-out,” Keller wrote in the Sept. 26 email. “This is a way for a school to ensure that its current students can finish their education and graduate. The ABA’s recently approved teach-out arrangements for other schools have provided that the law school keeps its ABA accreditation while it teaches out its current students. As a result, those teach-out students graduate with a degree from an ABA-approved law school and may sit for the bar exam in other jurisdictions.”

The ABA, which does not make public teach-out plans it approves, declined to comment on the scenario described by Keller.

Whether Thomas Jefferson would actually need a teach-out period if it lost ABA accreditation presents an interesting question.

In most other states, ABA accreditation is the only type available to a law school, so it makes sense when schools in those locations are given the opportunity for a teach-out.

But California permits schools to receive accreditation from the State Bar, and the state also permits unaccredited schools to register with the bar.

Thomas Jefferson has already secured approval from the State Bar to be a California-accredited school if the ABA rejects the school’s pending appeal to remain accredited. The state accreditation would allow the law school’s graduates to take California’s difficult bar exam.

The ABA declined to comment on whether Thomas Jefferson be given a teach-out period if it loses its ABA accreditation.

Keller wrote in an email to Above the Law that the law school continues to pursue its ABA appeal, and she said a small number of Thomas Jefferson students take the bar exam in other states.

In 2018, 31 Thomas Jefferson graduates took the bar exam for the first time in 18 jurisdictions outside of California, according to a report the school filed with the ABA. Just 11 of those graduates passed, a 35.5 percent success rate, though that was better than the 23.9 percent who passed the California test in 2018.

In the two prior years, roughly half of the 47 Thomas Jefferson students who took the bar exam in another state passed on their first attempt.

Meanwhile, two other ABA-accredited schools in California are already in the midst of teach-out processes, though neither is pursuing that route because they lost accreditation.

Western State College of Law in Irvine is teaching out current students while it awaits word of whether its different regulators, including the ABA, will sign off on a purchase by for-profit Westcliff University.

Westcliff, also based in Irvine, said the application for ABA approval of the ownership change is on the agenda for the November meeting of the ABA’s legal education council.

The WASC Senior College and University Commission has given interim approval of the transaction and full commission approval will be decided by the end of October, according to Westcliff.

There are 232 students currently at Western State, which became embattled because the parent company of Argosy University faced financial issues that left it in federal receivership.

Western State is not enrolling new students while it tries to finalize its sale to Westcliff, and the school has not sought State Bar of California accreditation.

Whittier Law School in Orange County is also undertaking a teach-out. The Costa Mesa-based school announced in spring 2017 it would be shutting down amid declining enrollment and poor bar exam results.

Interim Dean Rudy Hasl previously said he expected the teach-out and closure process would be complete by spring 2020.

Whittier graduates have been able to keep taking bar exams outside of California amid the teach-out, with nine students doing so in 2018. Just three of those first-time takers passed, though that success rate was far better than the 20.5 percent of first-time takers who passed California’s bar exam in 2018.

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Lyle Moran is a freelance writer in San Diego who handles both journalism and content writing projects. He previously reported for the Los Angeles Daily Journal, San Diego Daily Transcript, Associated Press, and Lowell Sun. He can be reached at lmoransun@gmail.com and found on Twitter @lylemoran.

* Kirkland promotes whopping 141 to partner. [American Lawyer]

* Supervised injection site given the go ahead in Philly. So maybe Gritty can finally get the help he needs. [Gizmodo]

* Gordon Caplan set for sentencing today. Prosecutors are looking for 8 months of prison time. [New York Law Journal]

* Trade war moves into the European theater. [Courthouse News Service]

* Law schools lag when it comes to minority clinical faculty. [Law.com]

* More clamoring for a national law to give NCAA athletes access to compensation for their likeness. [ESPN]

* A bunch of useless facts about the UK Supreme Court in case you’re looking for cocktail chatter. [Legal Cheek]

Why on earth would any lawyer without a Fox News contract agree to represent Rudy Giuliani? The man cheerfully trots out on television every night to screech out conspiracy theories and slander a major presidential candidate. He texts dozens of reporters in D.C. and New York every single day. And he appears to be practicing law in a jurisdiction where he holds himself out as being on inactive status, as George Washington University Fellow JJ MacNab pointed out on Twitter 18 months ago.

Not to quibble, but Greenberg Traurig gave him the boot in May of 2018 after he went on Sean Hannity’s show and claimed it was his standard practice to launder payments to his clients’ paramours through the firm’s escrow account. Very cool, and very legal!

And yet, Giuliani does appear to have found himself competent representation in his fellow NYU Law Class of ’68 alum Jon A. Sale, currently of counsel in the Miami office of Nelson Mullins Riley & Scarborough and co-chair of the firm’s White Collar and Government Investigations Practice Group.

The former Watergate prosecutor is a veteran Assistant U.S. Attorney, having represented the government in New York, Connecticut, and Florida. He’s currently admitted to the bar in several federal circuits, multiple states, and — we checked! — has maintained active status with the D.C. Bar since 1974.

So why on earth would this guy agree to represent Rudy?

“Every time I turn around, Rudy’s on another TV show,” Sale told CNN. “He and I could have a conversation, and then I turn on the television and he could be doing something else.”

Indeed he is. Like potentially waiving privilege by telling The Atlantic’s Elaina Plott, “I’m not acting as a lawyer. I’m acting as someone who has devoted most of his life to straightening out government.” Or partnering with the State Department in his Ukrainian misadventures in ways that make it unclear who his actual client is. Or perhaps failing to execute a written retainer agreement with Donald Trump, which is required in both New York, where he maintains active status, and D.C., where he doesn’t. Or plastering the White House and State Department with so much anti-Biden propaganda on stationary from the Trump Hotel that the horrified State Department Inspector General hotfoots it to Congress to dump it on them. Or, according to the Washington Post’s Josh Rogin, “manufacturing White House logos and sticking them on non-White House documents and pushing the real government to act on them.”

Or … whatever this is.

Will Mr. Sale be representing his client in the matter of Rudolph Giuliani v. The Swamp? Good thing he’s barred in so many jurisdictions!

Oh, wait, Rudy’s narrowed the scope of his prospective litigation. Now he’s threatening to sue the United State Congress for … SOMETHING.

So it’s Giuliani v. The U.S. House of Representatives, then. Or will Mr. Sale sit Rudy down for a scotch and cigar to reminisce about that day in the fall of 1965 when their beloved Con Law professor explained the Speech or Debate Clause?

Giuliani has been subpoenaed by three House Committees in conjunction with the impeachment inquiry, and says he intends to consult counsel and his client Donald Trump before deciding how to respond. For his part, Mr. Sale is unconcerned, telling Law.com, ““He 100 percent did not do anything illegal,” before adding, “I think the congressional forum is very partisan.”

Well, best of luck on landing such a high-profile client. We’re sure it will all work out for the best.

Rudy Giuliani hires Watergate prosecutor as attorney in impeachment inquiry [CNN]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.

A total of US$17, 852 was raised at the 19th annual Victoria Falls Anti-Poaching Unit (VFAPU) Golf Day at Borrowdale Brooke Golf Club on September 20, where 136 players, making up 34 teams, teed off for the charitable cause playing a 4 Ball Alliance format.

The tournament was won by the Toyota 2 team, made up of Yeukai Gatsi, Felix Sachiti, Fanuel Moffat and Irimayi Madyambudzi, who finished on 99 points, while Curverid Tobacco’s Natural Disaster and Paperhole Investments took second and third places respectively.

The lucky winners each took home an accommodation voucher for two nights for two people at the premium Victoria Falls Safari Club, with breakfast included, and one dinner at The Club restaurant.
Dendairy won the Best Dressed Ladies’ Team, while Trentyre was named the Best Dressed Men’s Team, and the Zimbabwe Special Olympics Team, sponsored by The Bronte Hotel, participated in the event for the sixth year.

The lucky raffle winners went home with a four-night fully inclusive safari package for two, staying at Matetsi Private Game Reserve and Camp Hwange; two return regional air tickets on BA Comair; and three nights for two at Ruckomechi Camp in Mana Pools.

Africa Albida Tourism (AAT) chief executive Ross Kennedy said the success of the VFAPU Golf Day was yet another example of the incredible strength and character of our community in the midst of a very tough economy.

“Many regular supporters stated it was the best VFAPU Golf Day ever, and we thank every single person involved for making it happen … our AAT team, Borrowdale Brooke Golf Club and all players, sponsors and donors,” Kennedy said.

The golf day is just one element of our continued fundraising efforts and so we urge those who can still assist in cash or resources to please consider supporting VFAPU,” he said.

VFAPU head of operations Charles Brightman thanked everyone involved, saying the funds raised annually at this tournament were vital to VFAPU’s survival and this would go a long way towards covering the unit’s operational costs.

VFAPU’s 17 scouts, who tackle all forms of poaching in the Victoria Falls region, have arrested 792 serious poachers since the unit was established in 1999 by Brightman, a professional guide and conservationist, and Victoria Falls Safari Lodge, AAT’s flagship property.

The unit, which works closely with the Zimbabwe Parks and Wildlife Management Authority and the Zimbabwe Republic Police, has also removed nearly 22 500 wire snares from its operational area, and rescued 243 mammals injured by snares.

Post published in: Featured

No job meant she was also homeless, along with her grandmother with whom she had shared a small home provided by the farm’s owners.

Mazorodze jumped at the opportunity to get a small plot of land of her own – distributed by the leaders of Chisumbanje, her village – but soon realised there was a price to pay.

“The traditional leader of the area told me I was young and not entitled to allocated land, since it was meant to benefit the elderly,” she told the Thomson Reuters Foundation in a phone interview.

“He blatantly said if I wanted a piece of land … I had to have sex with him. Out of desperation and poverty, I agreed to his terms,” the 37-year-old said.

Land is unevenly distributed in Zimbabwe and women, particularly in rural areas, are largely treated as dependants of men, not as landholders or farmers in their own right, according to the U.N. Food and Agricultural Organization.

Mazorodze said she was not the only one to be forced to offer sex for land out of desperation, adding that most women she knows are too embarrassed to speak out about their experiences.

She is a victim of sextortion, a growing form of corruption that forces women to offer sexual services in exchange for land, employment or job opportunities, according to Transparency International Zimbabwe (TIZ), an anti-corruption charity.

Sextortion is a global phenomenon that causes serious harm, robbing women of dignity and opportunity and undermining confidence in public institutions, rights groups say.

But legally it often falls between the cracks and does not get prosecuted as either a sexual crime or corruption, said Marilyn Sibanda, a legal officer at TIZ.

“The moment you consent, the criminal element falls out,” she told the Thomson Reuters Foundation.

“Of course, institutions or companies might have policies in places for people to report sexual offences. But villagers in secluded rural parts of the country don’t have measures to curb this form of corruption,” she added.

Her organisation’s research shows sextortion is becoming more common in Zimbabwe, she said, although there are no statistics available at a national level.

John Makamure, a commissioner in the Zimbabwe Anti-Corruption Commission (ZACC) said the organisation was ready to investigate such cases.

“It is crucial for people to bring forward evidence on this corruption, then ZACC can investigate. ZACC cannot just start investigations based on sentiments alone,” he said.

CORRUPTION RIFE At 160th place, Zimbabwe ranks towards the bottom of Transparency International’s Corruption Perception Index, a tool which ranks 180 countries by their perceived levels of public sector corruption.

Studies carried out by TIZ throughout Zimbabwe in 2016 showed women are vulnerable to sexual abuse when they try to access land for both residential, business and agricultural use.

“TIZ has conducted mobile legal clinics in rural areas… where we asked women if they knew about ‘sextortion’. The women concurred they know about the abuse and some confirmed they were victims of this corruption,” Sibanda said.

Researchers also found evidence of sextortion in Zimbabwe’s southwestern Matabeleland South province, where women said they were asked for sex in exchange for gold mining rights.

“We realise that in mining, it is difficult for women to own a gold mining claim,” said Scha Ndlovu, director for Community Youth Development Trust, a charity working with rural communities in the provice.

“Women are then forced to sleep with Mr So and So to gain mining rights in order fend for their families.”

SEXTORTION IN THE CITY

Sextortion is not confined to rural areas, said Farai Mutondoro, head of programmes at TIZ.

“In urban localities, we gathered information that as a result of demolitions of illegal settlements and displacement, woman bear the brunt of ‘sextortion’ as they need places to stay,” he said.

Mutondoro added that TIZ recorded cases of land corruption in the southwestern city of Bulawayo where women were excluded from a housing scheme and replaced with male candidates.

“Data show widows are losing out on estates because relatives bribe officials at the deeds office and put a different name (on the deed),” he said.

TIZ also recorded cases of women who confirmed they were exploited sexually in exchange for vending spaces in the city.

Malandu Ncube, a councillor at Bulawayo City Council, said the authority was aware of the problem and urged victims to come forward.

“Sometimes this occurs because there are women who prefer to cut corners, then fall victim to such exploitation. However, women must speak out about against such exploitation,” he said.

But deep-rooted cultural beliefs and blaming women rather than men for sextortion might make it hard to root out the problem, said Reginald Shoko, chair of the Affirmative Action Group, a non-profit association.

Shoko said some would doubt “sextortion” was real as sex is seen as a normal exchange between adults.

“It feeds into the perception that when most women make it to leadership positions, they would have offered sexual favours,” said Shoko. (Reporting by Lungelo Ndglovu; Editing by Astrid Zweynert and Zoe Tabary. Please credit Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers humanitarian news, women’s and LGBT+ rights, human trafficking, property rights, and climate change. Visit www.trust.org)

Post published in: Agriculture

A partner at DLA Piper has released an open letter accusing a senior partner of sexual assault and asking the firm to release her from their mandatory arbitration agreement so she can “assert [her] civil claims for assault, battery, sexual harassment and retaliation in our transparent court system.”

Vanina Guerrero alleges the co-managing partner of the firm’s Silicon Valley office, Louis Lehot, repeatedly sexually assaulted her, beginning shortly after she began working for the firm in 2018. She goes on to allege that Lehot’s position at the firm and “extreme temper” initially prevented her from reporting the abuse:

Less than two weeks into my new job working for Mr. Lehot, I suffered his first sexual assault. This happened in his hotel room on a business trip to Shanghai. I suffered the second assault several weeks later during a business trip to Brazil. By November 2018, I had endured two more sexual assaults, one in Chicago and one in Palo Alto. Having moved my two toddlers and husband that I support financially from Hong Kong to California for this job, I was petrified to believe what was happening to me, much less tell anyone. Mr. Lehot’s extreme temper and angry tirades that include shouting and clenching his fists are common knowledge at the office. Lawyers, staff and admin assistants do everything possible to avoid his wrath. My many attempts to fend off Mr. Lehot’s sexual advances failed.

She goes on to detail the impact of the alleged assaults, both on her career and her health:

Mr. Lehot controls my work and my ability to advance. When I dared to tell him to stop, Mr. Lehot would refuse to speak to me for weeks, threaten to take me off of client deals, and accuse me of underperformance. Horrifically, I later learned that he suggested to numerous men at the Firm, and to certain clients, that he and I were involved in a consensual relationship. After months of Mr. Lehot’s relentless campaign and physical advances, I began experiencing panic attacks and stress related medical conditions that landed me in the emergency room several times.

Guerrero, who also filed a complaint with the Equal Employment Opportunity Commission, alleges that Lehot demeaned her accomplishments as an attorney, saying “she was a successful lawyer only because men were attracted to her” and allegedly undermining her career by spreading rumors that “clients and lawyers are ‘uncomfortable’ working with her because of her sexual appeal.” This is despite Guerrero being highly recruited by the firm, and Lehot allegedly telling her as part of the pitch to come to DLA that “‘you’ll be my boss soon.’”

When Guerrero finally complained about the treatment, she alleges she was told by Sang Kim, co-managing parter of the firm’s Northern California practices, that it “sounded like a ‘he said, she said’ situation and that the best way to resolve it was for me to ‘talk it out’ with Mr. Lehot and three other senior partners – all men.” She says only a few days after this, she was taken off a major deal.

A firm spokesperson has responded to the open letter and complaint:

“We are aware of these allegations by one of our partners and take them seriously,” said Josh Epstein, a spokesman for DLA Piper. “As soon as we were notified of the allegations, we took appropriate steps to investigate them. This process is ongoing.”

There’s been no word, as of yet, from DLA as to whether they will hold Guerrero to the forced arbitration clause that is a term of employment at the firm. As you may recall, DLA Piper has come under fire for their use of mandatory arbitration, and has refused to do away with the practice despite protests against mandatory arbitration outside of their office.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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